Conde Nast

Tightening Its Stranglehold On Freelancers

ASMP has received a copy of what we have been told is a new freelancer contract from Condé Nast. In ASMP's opinion, it is one of the worst that we have ever reviewed. Although it appears to leave the photographer with marketable rights, the reality is that it comes very close to assigning all rights to Condé Nast. We have heard that photographers are trying to negotiate changes in the contract, and ASMP believes that doing so is in the best interests of all photographers, both individually and collectively.

The contract does not deal with compensation, saying instead that "…Condé Nast and Freelancer will separately, on a case-by-case basis, arrange the specifics of each assignment." Presumably, those specifics will include compensation.

Grant of rights. The grant of rights section requires careful reading. In a nutshell, Condé Nast gets the exclusive rights to first publication of every image made during an assignment, including seconds, similars, outtakes, etc. This means that unpublished photos from an assignment are tied up indefinitely. If you shoot an assignment under this contract, you cannot use or market any image from that assignment unless and until after that image has been published, and Condé Nast is not under any duty to publish any image, ever.

For images that CN does publish, there are two levels of embargo. If the images appear anywhere in a cover story, the photographer cannot use or license any of the images published in that story for a period of one year after the U.S. on-sale date for the issue in which the photographs are published. For published images that are part of an assignment where none of those images is used on a cover, the embargo is 90 days after the U.S. on-sale date.

Condé Nast also takes all of the rights that were at issue in cases like Tasini and National Geographic and expands them. CN takes the rights, "…by itself or through third parties, to republish, reprint and reuse the [photographs], and in addition to use the [photographs] and/or Freelancer's name and likeness in promoting, advertising and publicizing the publication(s), the [photographs], and the information products and services in which the [photographs] appear, and in merchandising." Those rights can be exercised in any medium, traditional and/or electronic, "… in whole or in any part, whether or not combined with the work of others."

In addition, Condé Nast has the option to use the images in foreign language publications for various flat fees, based on the countries of publication and the usages made. Further, CN has the unrestricted right to use any cover "for any purpose at any time." The contract also goes on to grant the full copyright to Condé Nast for all photographs in Australia and New Zealand for the full term of the copyright.

Further restrictions. In addition to granting these expansive rights to Condé Nast, the contract goes on to place unreasonable, and in some cases unworkable, burdens on the freelancers. It also ties up those few rights that have been left to the freelancers so tightly that they are almost valueless. For example, freelancers are required to use CN's form of model release, without modification. Further, photographers must obtain releases "… from all persons and owners of property pictured …" in the photographs. Not only is that requirement absurd on its face, the difficulties for the photographers are compounded by the fact that additional releases will be required if the photographers want any protection for themselves.

Of course, there is a real question of whether photographers will actually need releases for themselves, because they probably cannot use or license the photographs for any of the purposes that typically generate a need for releases: "Freelancers will not allow any of the [photographs] to be used at any time for any commercial or advertising purpose...." Photographers can ask CN for permission, but CN has the right to withhold consent without any obligation to have any reason for withholding permission or to act reasonably in making that decision. That is, commercial uses by the photographers are totally at the whim of Condé Nast.

Unworkable. There are additional burdens placed on the freelancers, including indemnification provisions. There is also a confidentiality clause that simply cannot work in the real world: The freelancers cannot "… allow anyone outside of Condé Nast (including but not limited to the subjects and the subjects' representatives) to view the [photographs] or portions thereof before publication." This means that nobody but the photographer and representatives of Condé Nast — not even assistants, stylists, etc. — can view any of the images until they have been published. Presumably, photographers will have to pull their own Polaroids and cover digital printers, monitors and viewfinders with focusing hoods!

Further complicating photographers' lives is the requirement that, if they have to notify CN of anything relating to the contract, they have to do so in writing, "… by Certified Mail, Return Receipt Requested, or delivered personally, and must be addressed to the attention of the Contracts Department." This means that your e-mails to your editors do not meet these requirements.

Finally, there is a rider that throws one small bone to the photographers. The rider states that the grant of rights will be construed to allow third-party uses only in connection with Condé Nast.

The balance test. For years, ASMP has recommended the following exercise for photographers who want to evaluate the reasonableness of a contract: Take a copy of the contract and two different colored highlighters; highlight all the provisions that benefit the photographer in one color and the provisions that benefit the client in the other color. Then take a look and see if the contract is fairly balanced or is skewed to benefit one side more than the other. Applying this test, it is hard to identify any provision in the new Condé Nast contract to highlight in the photographers' color.

ASMP encourages all photographers to carefully evaluate on an individual basis the value of a working relationship with Condé Nast publications. There may still be some value to providing images for the short term; however, a long-term relationship appears to have little to offer the photographer unless you are able to negotiate your own unique agreement.